Child’s best interests override ‘rights’ of parents in custody dispute

8-December-2013 Family Law By Simone Green

A recent case in the Family Court of Western Australia saw the primary care of three children aged 13, 12 and 11 awarded to the father’s ex-de facto partner rather than the children’s mother.

This unusual outcome demonstrates that the child’s best interests rather than any perceived ‘rights’ of natural parents is the overarching principle applied by the Family Courts.

In the case, (Whithall Richardson and Powles [2013] FCWA 54) Ms Powles, the father’s ex-de facto partner, joined the court proceedings against the natural parents of the children because she had cared for them for a significant part of their lives.

The father brought the original application for primary care before the mother filed a competing response. The father later abandoned his application and, following separation from the father, Ms Powles joined the proceedings as a party seeking the children live with her. All parties subsequently re-partnered and both the mother and the father had a further child. Each of the new relationships of the parents resulted in step-children joining the household of that parent, in addition to their new half-siblings. The siblings were then eventually separated at various times between the homes of the mother, the father and Ms Powles.

All children expressed a strong wish to live with Ms Powles. A complicating factor was that the mother’s new husband had a criminal history for attempted sale of child pornography; this however was surprisingly not the ultimate issue on why the mother’s application was unsuccessful. Also of significance in this case was the fact that each of the parties lived a significant distance from each other and changed homes several times to a new area, which created instability.

The Court found that Ms Powles’ application represented the most stability for the children. The father, while he did not contest the competing applications between the mother and Ms Powles, indicated that he believed the children were better off with Ms Powles.

The Court ordered that the children live with Ms Powles and that only in school holiday time will the children spend time residing with their mother and the father. The Court determined that the distance between each of the residences of the mother, father and Ms Powles was such that any other order was not reasonably practical. It was also determined that the orders made were most likely to reduce future litigation between the parties.

Streeterlaw family law specialist solicitor Simone Green said the case, while unusual, demonstrated the court’s primary concern in child custody cases.

“The Family Law legislation in Australia has the children’s best interests as the paramount consideration when deciding parenting matters,” she said. “In this case, the stability of the children’s living situation was particularly relevant and having a meaningful relationship with both parents was diminished with the arrival of a third significant party.”

In determining what is in the best interests of a child, the Court is guided by the ‘primary considerations’ (the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from being subjected to or exposed to abuse, neglect or family violence) in the Family Law legislation and ‘additional considerations’.

“In this case, the additional considerations had more weight and were key to determining what was in the children’s best interests,” Ms Green said.

The additional considerations that must be considered by the Family Court include:

  • the nature of the relationship between the child, each of the parents and any other relevant people;
  • the willingness and ability of each parent to facilitate a close relationship between the child and the other parent;
  • any wishes expressed by the child;
  • practical difficulty and expense of a child spending time with the other parent;
  • child’s maturity, sex and lifestyle;
  • indigenous culture;
  • family violence, and
  • what would be least likely to lead to further litigation between the parties.

To discuss concerns you may have about your parenting orders, please contact one of our Family Law specialists at Streeterlaw by phone on 8197 0105 or email


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